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Tiptoeing through the tripwires: recent developments in jurisdictional error
Citation
Moss, A, Tiptoeing through the tripwires: recent developments in jurisdictional error, Federal Law Review, 44 pp. 467- 503. ISSN 0067-205X (2016) [Refereed Article]
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© Australian National University Faculty of Law
Official URL: https://flr.law.anu.edu.au/flr/current-issue-volum...
Abstract
Australian administrative law's continuing emphasis on the concept of jurisdictional
error is increasingly unique amongst common law jurisdictions. This paper argues that
recent developments in Australian jurisprudence have provided little guidance for
administrative decision-makers, who are left' tiptoeing through the tripwires' of judicial
review. Combining a detailed analysis of primary decisions, academic publications and
historical scholarship, this paper suggests that this lack of guidance is the result of a
widespread judicial reluctance to engage with either the guidance or educative roles of
judicial review. As this paper demonstrates, failure to do so encourages uncertainty,
unpredictability and a general lack of clarity which inhibits judicial review's ability to
guide decision-makers and contribute to the maintenance of effective governance,
administrative justice, and the rule of law in Australia. Particular attention is given to
the decisions of Minister for Immigration and Citizenship v Li, Plaintiff M61/2010E v
Commonwealth, and NBMZ v Minister for Immigration and Border Protection, which
together encapsulate many of the most problematic aspects of recent jurisprudence. To
avoid these consequences, this paper calls on senior judges and commentators to
articulate a clearer framework which will be applied to guide the future development of
the doctrine of jurisdictional error.
Item Details
Item Type: | Refereed Article |
---|---|
Research Division: | Law and Legal Studies |
Research Group: | Public law |
Research Field: | Administrative law |
Objective Division: | Expanding Knowledge |
Objective Group: | Expanding knowledge |
Objective Field: | Expanding knowledge in law and legal studies |
UTAS Author: | Moss, A (Mr Aaron Moss) |
ID Code: | 114615 |
Year Published: | 2016 |
Deposited By: | Law |
Deposited On: | 2017-02-22 |
Last Modified: | 2017-11-20 |
Downloads: | 0 |
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